Professional Standards Authority for Health and Social Care v Social Work England & Anor

In an appeal against a fitness-to-practise decision, the regulator must charge the real substance of the alleged wrongdoing. Where conduct may amount to misconduct, it is a serious procedural irregularity to proceed only on health and barring allegations without charging misconduct, or at least considering whether the charges should be amended.

An appellate court reviewing sanction should respect the specialist tribunal’s evaluative judgment. A sanction is not outside the permissible range merely because a regulator’s suspension differs from the duration of a separate barring order. Public protection and the reputation of the profession remain paramount, although rehabilitation may be a legitimate public interest where impairment results solely from ill-health.

A panel of Social Work England found that JS’s fitness to practise was impaired by reason of a bipolar diagnosis and her inclusion in the Disclosure and Barring Service’s Children’s and Adults’ Barred Lists. It imposed a two-year suspension.

The Professional Standards Authority appealed under section 29 of the National Health Service Reform and Health Care Professions Act 2002. It argued that the sanction was insufficient and that the proceedings were unjust because misconduct had not been alleged in relation to JS’s attendance at a home visit while under the influence of alcohol and her neglect of her children.

The central issues were whether the omission to charge misconduct constituted a serious procedural irregularity and whether the suspension was outside the range of sanctions reasonably open to the panel.

1. Appeal allowed on ground 2. The panel was required to determine the allegations actually made. The charges concerned the fact of JS’s health diagnosis and the fact of her inclusion in the Barred Lists. They did not require findings that the underlying conduct constituted misconduct.
2. The evidence did not establish that the conduct was entirely attributable to JS’s bipolar condition. The attendance at the home visit while under the influence of alcohol and the neglect of her children were matters capable of amounting to misconduct. The regulator should have amended the charges to include misconduct, or at least adjourned and directed consideration of such an amendment.
3. The failure to bring the real burden or substance of what had gone wrong to the panel’s attention amounted to undercharging and was a serious procedural irregularity. Considering the factual circumstances for the purposes of the health and barring allegations did not cure that failure.
4. Ground 1 failed. Had the panel been dealing only with a mental-health diagnosis and the fact of barring, a two-year suspension could not be said to fall outside the range of appropriate sanctions. The DBS and the professional regulator perform different functions, so the difference between the duration of the suspension and the barring order did not itself undermine public confidence.
5. The regulator’s fundamental functions are public protection and maintenance of the profession’s reputation. Those objectives take priority over the individual registrant’s interests. Nevertheless, rehabilitation of social workers with chronic ill-health or disability may serve the public interest where no potential misconduct is involved.
6. Because the procedural irregularity prevented the court from determining whether the sanction was sufficient, the decision could not stand. The court was minded to quash the decision and remit the matter to a differently constituted panel, with directions to consider misconduct allegations concerning the home visit, the neglect of the children and potentially failure to co-operate with the fitness-to-practise process.

• High Court (Administrative Court): appeal under section 29 of the National Health Service Reform and Health Care Professions Act 2002 succeeded on the procedural-irregularity ground but failed on the sanction ground. The court was minded to quash the panel’s decision and remit the matter to a differently constituted panel.
• Social Work England adjudicators: on 22 September 2022, found impairment on health and barring grounds and imposed a two-year suspension.